- (1.) Let affidavit of service filed today be kept with the record.
(2.) Despite service none appears on behalf of the plaintiff/opposite party. In this revisional application under Article 227 of the Constitution of India the defendant/petitioner has challenged the Order no. 36 dated 17th September, 2009 passed by the learned Civil Judge (Junior Division), 3rd Court, Baruipur, 24 Parganas (South) in Title Suit No. 69 of 2007 allowing the application for not admitting the photocopy of the tenancy agreement as an exhibit. Incidentally the petitioner filed an objection to the said application, being annexure B to this petition, praying for marking the photocopy of the said agreement as an exhibit.
(3.) The matter was taken up on 24th February, 2010 when after hearing the learned advocate for the petitioner an interim order was passed staying all further proceedings in the said title suit. It is submitted on behalf of the petitioner since the original tenancy agreement is in the custody of Nimai Chandra Singha, the landlord, who is unheard of since long, the learned Judge erred in passing the order declining to admit photocopy of the agreement as an exhibit since foundation of the same has been set out in the examination-in-chief on affidavit. Relying on the judgement of the Apex Court in Nawab singh v. indrajit kaur, 1999 AIR(SC) 1668 and referring to Section 65(a) of the Indian Evidence Act, 1872 it is submitted that order has been passed ignoring the legislative mandate and the settled position of law. Heard learned advocate for the petitioner. Perused the order under challenge. I find while rejecting the prayer of the petitioner for admitting the photocopy of the agreement it has been held as under : "The defendant claims to be a tenant of the suit property in the instant suit, but has made no effort to produce the original, simply stating that the custodian of the original, i.e. the landlord is unheard of since long. However, he claims to pay rent as per terms of the tenancy agreement. Photocopies of documents can be obtained by mechanical process, but the same is not tamper proof. Thus the photocopy ........produced by the defendant is not above suspicion and cannot be admitted as secondary evidence.";